<< Willingham Prosecutor Cleared | Main | News Scan >>

Jeff Sessions Returns DOJ to Sound Charging Policy

Attorney General Sessions has issued a charging directive to federal prosecutors. The heart of it is this:

[I]t is a core principle that prosecutors should charge and pursue the most serious, readily provable offense. This policy affirms our responsibility to enforce the law, is moral and just, and produces consistency.  This policy fully utilizes the tools Congress has given us.  By definition, the most serious offenses are those that carry the most substantial guidelines sentence, including mandatory minimum sentences.

There will be circumstances in which good judgment would lead a prosecutor to conclude that a strict application of the above charging policy is not warranted.  In that case, prosecutors should carefully consider whether an exception may be justified.  Consistent with longstanding Department of Justice policy, any decision to vary from the policy must be approved by a United States Attorney or Assistant Attorney General, or a supervisor designated by the United States Attorney or Assistant Attorney General, and the reasons must be documented in the file.

Second, prosecutors must disclose to the sentencing court all facts that impact the sentencing guidelines or mandatory minimum sentences, and should in all cases seek a reasonable sentence under the factors in 18 U.S.C. ยง 3553.  In most cases, recommending a sentence within the advisory guideline range will be appropriate. Recommendations for sentencing departures or variances require supervisory approval, and the reasoning must be documented in the file.

This has been reported as "new" guidance, but it's not.  It's the return of the "most serious readily provable" standard that governed charging policy during most of my 18-year tenure in the US Attorney's Office, a tenure that ended last century.  The policy continued during the George W. Bush Administration.

It was right then and it's right now.  It amounts to telling prosecutors to charge what the defendant actually did.  This is so obviously correct  --  aligning the allegations with the facts  --  that I have a hard time seeing any serious objection to it.

It does allow exceptions  --  that is, in practice, more lenient charging  --  in unusual cases. That too seems obviously correct, together with the Attorney General's caveat that such cases must, indeed, be out of the heartland, and the reasons for leniency should be documented and approved by a more senior AUSA or the USA himself. This prevents inattentive, inexperienced or irresolute AUSA's from doing their own thing (or being bullrushed by an aggressive or smooth-talking defense lawyer).

On its face, this policy is not that much of a change from the one Eric Holder adopted, but there is an important change in emphasis and purpose.  

The Obama Administration wanted to get through Congress a bill that would lighten up on mandatory minimums (the most recent incarnation of which was the Sentencing Reform and Corrections Act).  But the legislation did not have enough support to make it to the floor in either chamber, so Mr. Obama and his appointees did what they developed a habit of doing:  Implementing a statutory change they couldn't sell to Congress by simply refusing to enforce existing law.  Sessions' present move is a step toward restoring consistency and respect for the will of the legislature.

It will be attacked by the Left as likely to produce longer sentences.  That's probably so.  However, there is a ready mechanism by which such sentences can be avoided: Mr. Nicey might consider quitting the smack business and getting a normal job like everybody else.  I'm just not a partisan of the notion that it's always the public that has to change. Instead, in both practical and moral senses, we'll be better off when we insist that it's the criminal who has to change.  We don't need less serious charging. We need less crime.

Criminals make choices.  We should give them enhanced incentives to make better ones, for them and for us.  The Attorney General's directive does just that.


Andrew Stuttaford of NRO takes a decidedly different view, concluding with "Sessions is a conservative, I am told." Some have said similar things about NRO.

Will this policy apply to 18 U.S.C. 1505?

If yes, before filing the charge, will AUSAs have to believe that the admissible evidence establishes probable cause to believe that the crime was committed? Or would they have to have a good faith belief that the admissible evidence proves the crime beyond a reasonable doubt?

Leave a comment

Monthly Archives